Bailey v. . Howell , 209 N.C. 712 ( 1936 )

Originally begun as a special proceeding for the partition of land, upon defendants' plea of sole seizin, the cause was transferred to the civil issue docket for the determination of the issue of title to the land.

The uncontroverted facts were these:

In 1919, by deed, the described land was conveyed to Sarah Peterson and her daughter, Lydia, wife of W. S. Renfro, as tenants in common. Sarah Peterson died in 1925, and her one-half interest in the land descended one-third to her daughter, the plaintiff Mary E. Bailey, one-third to the other plaintiffs, the children of her deceased son, Charles Peterson, and one-third thereof to the said Lydia Renfro. So that thereupon the plaintiff Mary E. Bailey owned one-sixth of the whole, the named children of Charles Peterson one-sixth of the whole, and Lydia Renfro the remaining two-thirds of the whole (one-half under the deed of 1919 and one-sixth by descent from Sarah Peterson). Lydia Renfro has been in possession of said land since the death of Sarah Peterson in 1925.

The land, which was listed in the name of Lydia Renfro, was sold by the sheriff for the nonpayment of taxes 1 September, 1926. The plaintiffs were at that time nonresidents, and it is alleged in the petitioners' reply that three of them were under the age of twenty-one years. On 24 August, 1927, within less than one year from the date of tax sale, the sheriff executed a deed for the land to the defendant J. W. Howell. The affidavit required by the statute, C. S., 8029, was not attached to the sheriff's deed.

Defendant J. W. Howell, 9 September, 1927, reconveyed the land to the said Lydia Renfro, and took a mortgage from her back to himself. Subsequently, by deed dated 18 July, 1931, J. W. Howell, mortgagee, executed deed to Jesse Howell for the land, and by deed dated 4 August, 1931, registered 6 March, 1935, Jesse Howell and wife reconveyed to J. W. Howell.

Evidence was offered as to the relationship of the parties, and that Lydia Renfro and her husband had lived on and been in possession of said land since the death of Sarah Peterson in 1925.

This action was begun 27 February, 1935.

At the conclusion of plaintiffs' evidence, defendants' motion for nonsuit was allowed, and from judgment dismissing the action plaintiffs appealed. The defendants seek to sustain the nonsuit on the ground that the plaintiffs are barred by the three-years statute of limitations, C. S., 441 (10), or by seven years adverse possession under color of title.

It is admitted that the sheriff's deed was void. It was not made in conformity with the statutory provisions in effect prior to the Act of 1927. The Act of 1927, ch. 221, which went into effect 9 March, 1927, changed the law as to tax deeds, repealed secs. 8028 to 8037, inclusive, of the Consolidated Statutes, and substituted the remedy by suit for foreclosure of the certificate of tax sale. The sheriff's deed was executed without authority of law.

But even if it be conceded that the statute of limitations is broad enough to bar any proceeding with respect to real property unless instituted within three years next after the execution of the sheriff's deed, the defendants are not in position to invoke its protection under the facts shown by the record in this case. The statute does not apply when the owner continues in possession. McNair v. Boyd, 163 N.C. 478; Jordan v.Simmons, 169 N.C. 140; Price v. Slagle, 189 N.C. 757.

The plaintiffs and Lydia Renfro were admittedly tenants in common up to the time of the execution of sheriff's deed in August, 1927, and the possession of one tenant in common is in law the possession of all (Purvisv. Wilson, 50 N.C. 22), until there has been an ouster and adverse holding for twenty years. Crews v. Crews, 192 N.C. 679; Hicks v. Bullock,96 N.C. 164.

And the conveyance by the sheriff to Howell and by Howell within a few days back to Lydia Renfro, together with the subsequent passing back and forth of the title, could not change the effect of the continued possession of the land by Lydia Renfro at all times and up to the trial, nor destroy her tenancy in common with plaintiffs. Smith v. Smith, 150 N.C. 81. She held in trust for all the tenants in common.

Tenants in common are placed in confidential relations to each other by operation of law as to the joint property. "These relations of trust and confidence bind all to put forth their best exertions, to protect and secure the common interest, and forbid the assumption of a hostile attitude." Freeman on Cotenancy, sec. 151.

"It is a well settled rule that a person under any legal or moral obligation to pay the taxes cannot by neglecting to pay the same, and allowing the land to be sold in consequence of such neglect, add to or strengthen his title by purchasing at the sale himself, or by subsequently buying from a stranger who purchased at the sale; otherwise, he would be allowed to gain an advantage from his own fraud or negligence in failing to pay the taxes." Smith v. Smith, supra.

The acquisition of an outstanding adverse title by one of the tenants in common, who is in possession, inures to the benefit of all. And this rule applies to tax sales. Tiffany Real Prop., sec. 201. Goralski v. Kostuski,179 Ill. 177, 20 Am. St. Rep., 98.

The law will not permit Lydia Renfro, one of the tenants in common, as result of a sale of the land for taxes listed by her, to take title to the whole tract to the exclusion of the other tenants in common. As the tenant who was in possession, she occupied a trust relationship with respect to the land for her cotenants.

While an invalid sheriff's deed will ordinarily constitute color of title, the possession of Lydia Renfro was not adverse to the plaintiffs, and the deed to her of an outstanding adverse title inured to the benefit of her cotenants. Nor could defendant J. W. Howell claim the benefit of her possession under her mortgage to him and subsequent foreclosure and deed, for her deed would not convey the interest of the plaintiffs, nor constitute color of title as against them. As was held in Lumber Co. v.Cedar Works, 165 N.C. 83: "A deed by one tenant in common of the entire estate is not sufficient to sever the unity of possession by which they are bound together, and does not constitute color of title, as the grantee of one tenant takes only his share and steps into his shoes. In such case twenty years adverse possession, under claim of sole ownership, is required to bar the entry of the other tenants." Crews v. Crews, supra.

Hence, it follows that the plaintiffs' title to an interest in the land has not been divested by seven years adverse possession under color of title, nor has their action been barred by the statute of limitations.

The deed to the defendant J. W. Howell from D. R. Fonts, commissioner, in a tax foreclosure suit by the county commissioner, in October, 1932, could not affect plaintiffs' title, since they were not parties to that action.

It is stipulated in the record that plaintiffs admit that the taxes claimed by the defendants to be due are due, and that they will pay them.

We conclude that defendants were not entitled to have the action dismissed, and that the judgment of nonsuit must be

Reversed.